012-SLLR-SLLR-2003-V-3-NANAYAKKARA-AND-OTHERS-v.-SIRISENA.pdf
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Sri Lanka Law Reports
[2003] 3 Sri L.R
NANAYAKKARA AND OTHERSvSIRISENACOURT OF APPEALAMARATUNGA, J.BALAPATABENDI, J.CA REV. 1723/2001D.C. GALLE 9773/LFEBRUARY 10, 2003
Civil Procedure Code S. 5, S.187, S.188, S.337 – Settlement entered – Interms of settlement decree entered in 1994 – Application to execute decreeallowed 6 years later – Settlement – Judgment – Decree – Computation of 10year period in S.337.
Held :
The settlement was entered on 25.1.1990, the decree was entered onlyon 10.2.1994, the application to execute the decree was allowed on18.10.2000.
When there is a settlement there is no adjudication and there is nojudgment within the meaning of S.187, the terms of settlement cannotbe elevated to the status of a decree, which has to be in Form No. 41.Thus it is clear that the terms of settlement were not the decree in thecase.
The period of 10 years begins to run from 10.2.94 not from the date ofsettlement 25.1.90.
APPLICATION in Revision against the Order of the District Court of Galle.
Hemasiri Withanachchi for petitioners.
J.C. Weliamuna with Shantha Jayawardena for respondent.
Cur.adv.vult
CA
Nanayakkara and others v Sirisena (Gamini Amaratunga, J)
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April 1, 2003
GAMINI AMARATUNGA, J.This is an application in revision to set aside the order made bythe learned Additional District Judge of Galle dated 21.9.2001. Thatorder relates to the execution of the writ of possession in favour ofthe plaintiff. The plaintiff by his plaint dated 30.7.1981 averred thathe was the owner of lot No 8 depicted in final partition plan No. 780prepared by Surveyor Garvin Silva in District Court, Galle case NoP2421. The total extent of lot No. 8 was perches 28.62. Along thenorthern boundary of lot No.8 ran a roadway marked lot 12 in thesaid plan and this roadway was the access to the defendant's landmarked Lot 9. The plaintiff alleged that the defendant encroachedupon a portion of land from the northern boundary of lot No.8 andannexed it to lot No. 12 which is the defendant's roadway to his lot.The plaintiff prayed for a commission to a Surveyor to demarcatethe encroached portion and for an order declaring that he is theowner of that demarcated portion.
The Court has issued a commission to the same SurveyorGarvin Silva to prepare a plan showing the alleged encroachment.On 22.2.1983 the Surveyor has surveyed the land and preparedthe plan which has been produced by the petitioners as P2 in theseproceedings. In that plan the Surveyor has marked the encroach-ment 00.62 perches in extent – as lot 8 A.
On 25.1.1990 after one witness testified at the trial partiesentered into a settlement. The defendant agreed that lot 8A in thesaid plan belonged to the plaintiff. The plaintiff agreed that the road-way marked lot 12 is the roadway to defendant's lot No 9. Thedefendant agreed to allow the plaintiff to build a stone wall alongthe northern boundary of lot 8A (that is along the southern bound-ary of lot 12 roadway). The defendant also agreed to the plaintiffgetting the boundaries of the roadway demarcated by a Surveyor.The Judge ordered to enter decree in terms of this settlement.
The decree had been entered only on 10.2.1994. The delay for
the entering of the decree is not relevant to this application. Itappears that at some point of time the defendant has died but theexact date of his death has not been given by both parties.However in the documents annexed to the petition there is an appli-
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Sri Lanka Law Reports
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cation made to Court dated 18.2.1994 seeking to substitute the pre-sent 2nd and 3rd petitioners in place of the deceased defendantand the Court on 17.11.1995 has issued notice on the proposedsubstituted defendants. (J.E. No 62) According to journal entry No69 notices have been served on 1A defendant but there is no reportindicating that notices have been served on 1B defendant.
Since it was necessary to demarcate the boundaries of lot No 12(roadway) before the plaintiff could erect a stone wall along thesouthern boundary of the roadway (which is the northern boundaryof lot 8A) the plaintiff again sought a commission to a Surveyor andthis was issued on 17/8/1995 and the Surveyor’s plan was submit-ted to Court on 6/1/1999. It appears from the record that the delayin submitting the plan was due to the illness of the Surveyor.Thereafter on the application of the plaintiff, the Court on18/10/2000 made order directing the execution of the writ.According to the Fiscal’s report, on 25/11/2000 he went to the rele-vant land and after the Surveyor demarcated the boundaries hehanded over possession of the relevant portion of the land to theplaintiff and the latter then and there built a boundary wall along theboundary of the roadway. According to the fiscal’s report the 1stand 2nc* petitioners have objected to the execution of the writ buthe has asked them to make their objections to Court.
When one considers the Fiscal’s report the purpose of theencroachment becomes apparent. According to the Fiscal’s reportafter the plaintiff built the stone wall along the line shown by theSurveyor vehicles could not be taken along the roadway to lot No.9. However the petitioners cannot now challenge the validity of thedecree entered in terms of the settlement. They have in fact notchallenged the validity of the decree. Instead they have challengedthe execution on the basis that ten years have elapsed from thedate of the settlement and that all heirs of the deceased defendanthave not been substituted before the writ was issued.
It appears that the petitioners rely on section 337 of the CivilProcedure Code which enacts that “No application….to execute adecree….shall be granted after the expiration of ten years from-
(a) the date of the decree….”
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Nanayakkara and others v Sirisena (Gamini Amaratunga, J)
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In this case the application to execute the decree was allowed on18/10/2000. The decree was never entered on the day the parties set-tled the case. On that day the Court merely ordered “enter decreeaccordingly”. This is clear from the proceedings as well as from thejournal entry No 50 of 25/01/1990. According to section 5 of the CivilProcedure Code ‘decree’ means the formal expression of an adjudi-cation upon any right claimed or defence set up in a CivilCourt….Judgment means the statement given by the Judge of thegrounds of a decree or order. In other words judgment means the rea- 80sons upon which the adjudication is based. See section 187 of theCivil Procedure Code. In terms of section 188 of the Civil ProcedureCode after the judgment a formal decree shall be drawn and signedby the judge. When there is a settlement there is no adjudication andthere is no judgment within the meaning of section 187 of the CivilProcedure Code. The terms of settlement are terms agreed upon bythe parties. Such terms cannot be elevated to the status of a decree,which according to section 188 of the Civil Procedure Code, has to bein the form of form No 41 in the first schedule or to the like effect. Thusit is clear that the terms of settlement were not the decree in the case, 90The journal entry of 10/2/94 (JE 59) clearly shows that the decreewas entered – which means in terms of the provisions of section 188of the Civil Procedure Code signed by the Judge – on 10/2/1994.Therefore the period of ten years begins to run from 10/2/94 and notfrom the date of settlement i.e. 25/1/1990. Accordingly the petitioners’contention that the writ has been issued ten years after the decreefails.
Their other contention is that four other heirs of the deceaseddefendant have not been added as substituted defendants. Thelearned Judge in his order of 21/09/2001 has directed to add them. 100
It appears that after the present petitioners filed their objectionsto the execution of the writ the learned judge has restored the sta-tus quo. In his order dated 21/9/2001 he has held that the plaintiffis entitled to get the writ executed. This order is a correct order.Accordingly this revision application is dismissed with costs fixed atRs. 7500/-.
BALAPATABENDI, J.- I agree
Application dismissed